Hessmer v. Bad Government

Filing 34

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that pltf's 28 Petition for Injunction be DENIED. Signed by Magistrate Judge E. Clifton Knowles on 10/19/12. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(rd)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION JOHN ALLEN HESSMER, Plaintiff, vs. BAD GOVERNMENT, et al., Defendants. ) ) ) ) ) ) CASE NO. 3:12-0590 ) JUDGE CAMPBELL/KNOWLES ) ) ) ) ) REPORT AND RECOMMENDATION This matter is before the Court upon the pro se prisoner Plaintiff’s “Petition for Injunction.” Docket No. 28. Plaintiff seeks an injunction against Judge David Earl Durham and Wilson County for three allegedly “abhorrent acts.” Docket No. 28, p. 1. Plaintiff avers that Judge Durham and the “prosecutor” withheld exculpatory information and participated in a conspiracy to deprive him of “vast amounts of property.” He further avers that Judge Durham conspired with the District Attorney and Public Defender to deprive Plaintiff of trial rights, witnesses, and rights to pro se representation. Finally, he avers that a Public Defender, Judges John D. Wooten, Jr. and James Oscar Bond, Sr., and Clerk, Linda Neal, deprived him of “vast amounts of property, post-conviction trial rights, and appellate rights . . . and – LIBERTY!” Plaintiff concludes as follows: Wherefore, Honorable Todd J. Campbell, these are not caprice cursory palpable allegations and are greatly more detailed in the suit complaint, Plaintiff’s prayer is more than substantiated for injunction against Judge Durham from trying Plaintiff’s case and truly warrants transfer of case to Nashville considering the pervasive acts of prejudice perpetrated against the Plaintiff. Id., p. 2. It appears that the only injunctive relief sought by Plaintiff is to prohibit Judge Durham from trying Plaintiff’s case. While Plaintiff refers to the transfer of his case to Nashville, it is unclear whether he seeks a transfer to this Court or to another Court. As a general rule, federal courts do not enjoin state criminal proceedings. Younger v. Harris, 401 U.S. 37 (1971). The Younger court referred to “the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.” 401 U.S. at 41 (footnote omitted). While Younger recognized an exception to the general rule for “bad faith prosecution,” Younger did not involve a bad faith prosecution. Instead, Younger referred to Dombrowski v. Pfister, 380 U.S. 479 (1965) as such a case. As one noted commentator has stated: The Supreme Court has defined a bad faith prosecution as a prosecution that “has been brought without reasonable expectation of obtaining a valid conviction.” The Court has not applied this exception since its Younger decision, but has rejected claims of bad faith prosecution in several cases . . . . The bad faith prosecution exception, then, may be limited to the Dombrowski facts: repeated state prosecution solely to harass rather than to convict, coupled with the inability to assert constitutional claims in the state proceedings because lack of prosecution. Moore’s Federal Practice 3d § 122.05[3][a], p. 122-91 (italics in original, footnote omitted). Additionally, Plaintiff has not specifically averred that he has been prosecuted in bad faith, nor has he supplied any specific facts that would support such a position. Thus, the “bad faith” exception to the Younger abstention doctrine does not apply in the case at bar. Moreover, the undersigned has previously submitted a Report and Recommendation, 2 recommending in part that Plaintiff’s claims against all Defendants, except Chief Bryant, be dismissed. Docket No. 15. That Report and Recommendation is pending before Judge Campbell. The Report and Recommendation concludes in part that Judge Durham has judicial immunity. Plaintiff, therefore, cannot show a substantial likelihood of success on the merits, which is one of the requirements for the issuance of an injunction. Mason County Med. Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977). For the foregoing reasons, the undersigned recommends that Plaintiff’s “Petition for Injunction” (Docket No. 28) be DENIED. Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days after service of this Report and Recommendation in which to file any written objections to this Recommendation with the District Court. Any party opposing said objections shall have fourteen (14) days after service of any objections filed to this Report in which to file any response to said objections. Failure to file specific objections within fourteen (14) days of service of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985), reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. E. Clifton Knowles United States Magistrate Judge 3

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